Paxton & Keely
[2023] FedCFamC2F 493
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Paxton & Keely [2023] FedCFamC2F 493
File number(s): MLC 5505 of 2021 Judgment of: JUDGE J YOUNG Date of judgment: 3 May 2023 Catchwords: FAMILY LAW – undefended – parenting and property – where father has disengaged from proceedings – where father has not spent significant time with the children since 2018 – where father has committed family violence – where father has abused illicit substances – where father has been incarcerated for periods of time – where 16 year old child is only child of the relationship with the father’s surname – where mother’s family live overseas – where wife has been solely responsible for mortgage repayments – where wife has limited future earning capacity – orders made for sole parental responsibility – orders made for change of name for 16 year old child – orders made for mother to obtain children’s passports without consent – orders made for property adjustment of 10% in wife’s favour Legislation: Australian Passports Act 2005 (Cth) section 11(1)
Family Law Act 1975 (Cth) pts VII, VIII, ss 60B, 60CA, 60CC(3), 61DA, 75(2), 79(2) and (4).
Cases cited: Beach & Semmler (1979) FCWA 1
Bevan v Bevan [2013] FamCAFC 116
In the Marriage of Hickey [2003] FamCA 395
Kuebler & Kuebler (1978) FLC 90-434
Line and Line (1996) 21 FamLR 259
Lysons & Lysons [2019] FamCAFC 29
Mallet v Mallet (1984) 156 CLR 605
Norbis v Norbis (1986) 161 CLR 513
Reagan & Orton [2016] FamCA 330
Stanford v Stanford (2012) 247 CLR 108
Division: Division 2 Family Law Number of paragraphs: 112 Date of hearing: 19 April 2023 Place: Melbourne Counsel for the Applicant: Ms Brookes Solicitor for the Applicant: Keane Family Law Counsel for the Respondent: Did not participate ORDERS
MLC 5505 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS PAXTON
Applicant
AND: MR KEELY
Respondent
order made by:
JUDGE J YOUNG
DATE OF ORDER:
3 MAY 2023
THE COURT ORDERS THAT:
1.All previous interim orders be dismissed.
2.The mother have sole parental responsibility for the children X born in 2006 and Y born in 2016 (“the Children”).
3.The Children live with the mother.
4.The father is restrained by injunction from communicating with or contacting the Children in any way without the express written (including by text message) consent of the mother.
5.The child previously known as X PAXTON-KEELY born in 2006, (“the Child”) now be known as X PAXTON.
6.The mother apply to the Victoria Registry of Births, Deaths and Marriages to register the change of the Child’s name, in accordance with Order 5, and do all such acts and things and sign all such documents as may be required to give effect to that registration.
7.The mother is authorised to apply for and receive an Australian passport for the Children pursuant to s 11 of the Australian Passports Act 2005 (Cth) without first obtaining the written consent of the father.
8.Pursuant to s 65Y of the Family Law Act 1975 (Cth), the mother is authorised to remove the Children from the Commonwealth of Australia for the purpose of travel at her discretion without first notifying the father.
9.For the personal protection of the mother and the Children, the father, his servants and/or agents (including friends and family members), be and are hereby prohibited from:
(a)approaching the mother and/or the children or remain within 20 metres of the mother and/or child; and
(b)go to or remain within 200 metres of any place where the mother and/or children lives, works or attends school.
10.Within 120 days or such other time as agreed by the parties in writing, the husband do all acts and things and sign all documents necessary to transfer all his right, title and interest in the real property known as B Street, Suburb C in the State of Victoria and more particularly described as Certificate of Title, Volume … Folio … (“the Home”) to the wife at the wife’s cost.
11.Contemporaneously with the Transfer of the Home, the wife will do all acts and things necessary to discharge the mortgage to Westpac Bank registered on the title to the Home as dealing number … (“the Mortgage”).
12.In the event the wife is unable to discharge the Mortgage then the house is to be sold with the following conditions applying:
(a)For the purpose of carrying into effect these orders, the wife is hereby appointed trustee for sale of the husband’s interest in the Home (“the Trustee”).
(b)The husband must, upon the request of the Trustee, within 14 days sign all documents and produce all relevant documentation in his possession, custody or control and do all things necessary to transfer to the Trustee the husband’s interest in the Home and list the property for sale.
(c)If the husband defaults under the immediately preceding order, then the Registrar of the Federal Circuit and Family Court of Australia is empowered and authorised to do all things necessary to transfer the husband’s interest in the Home to the Trustee and list the property for sale pursuant to s 106A of the Family Law Act 1975 (Cth) and by way of consequential arrangement to this order: -
(i)an affidavit by the compliant party and/or their solicitor setting out the non-compliant party’s failure to comply with these orders will be sufficient evidence of non-compliance; and
(ii)the compliant party nominate a solicitor who is authorised to sign documents of PEXA transfers and such solicitor shall sign on behalf of the non-compliant party upon the written request from the compliant party to do so upon provision of a sealed copy of these Orders.
(d)The selling agent and conveyancer will be as chosen by the wife;
(e)The method of sale and listing/reserve price will be at determined by the wife;
(f)The wife has the sole discretion and power to accept or reject any offer to purchase the Home.
(g)The sale proceeds be paid in the following manner and priority:
(i)to discharge the Mortgage to Westpac Bank registered as Dealing Number …;
(ii)to pay the agents costs and commissions and the conveyancing costs of the sale; and
(iii)the balance to the wife.
13.Pending completion of the transfer or sale of the Home, the wife has exclusive occupation of the Home.
14.Unless otherwise specified in these Orders and save for the purpose of enforcing any monies due under this or any subsequent orders:
(a)each party be solely entitled to the exclusion of the other to all other property in the possession, name or control of such party as at the date of these Orders including but not limited to, monies, goods and motor vehicles;
(b)each party forgo any claims they may have to any superannuation or other work- related benefits belonging to or earned by the other;
(c)insurance policies remain the sole property of the beneficiary named therein;
(d)each party be solely liable for and indemnify the other party against any liability encumbering an item of property to which that party is entitled pursuant to these Orders and any liabilities held in their individual names whensoever incurred; and
(e)any joint tenancy of the parties in any real or personal estate is hereby expressly severed.
15.If either party refuses or neglects to sign or execute and return a document within 14 days of a written request to do so, then the Registrar of the Federal Circuit and Family Court of Australia is hereby appointed under s 106A of the Family Law Act 1975 to sign or execute such document on behalf of that party upon lodgement of such document and the filing of an affidavit on behalf of the requesting party as to the said neglect or refusal and the requesting party be at liberty to apply for costs when submitting such an affidavit to the Registrar.
AND THE COURT NOTES THAT:
A.The parties have a joint debt as a result of a personal loan from Westpac Bank which was transferred to Company D. Company D have advised the wife in writing that they do not intend to pursue her for this debt.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Paxton & Keely has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE J YOUNG:
INTRODUCTION
The Court has before it an Application for parenting and property orders.
The proceedings were commenced by the applicant mother and wife on 18 May 2021.
The father and husband is the respondent to the proceedings.
The parenting proceedings relate to the two youngest children of the relationship, X, born in 2006, aged 16 years, and Y, born in 2016, aged 6 years. There is an adult child of the relationship, Ms E, born in 2003 and aged 19 years.
The father did not file any trial material or attend the hearing. Accordingly, the matter proceeded on an undefended basis.
FACTS
Background
The mother is 42 years of age and the father is 41 years of age.
The parties commenced cohabiting in around 2002. Ms E was born the following year in 2003. In 2006, X was born.
The mother worked full-time as a customer service officer and admin assistant until 2013, apart from a period of 3 weeks following the birth of each child. The father worked full-time until suffering a workplace injury in 2011.
The mother states that the father used illicit drugs, including speed and ecstasy, prior to their relationship. The mother says she was aware of the father’s past drug use but understood this to be on a casual/social basis, and his use was not to the extent of an addiction.
In early 2006, the mother says that the father was abusing drugs. She states the parties separated during this time and the father went into rehabilitation at F Centre. The parties reconciled following this in 2007.
In 2009 the parties purchased a property at B Street, Suburb C for $280,994 (Property). The mother’s evidence is that the purchase of the Property was made using the first home owners’ grant and a mortgage from Westpac Bank. The maternal grandmother guaranteed the mortgage, using her home as security.
In 2011, the father suffered a workplace injury for which he was prescribed heavy painkillers. The mother states that following this, the father quickly spiralled into drug addiction. Over the next year, the mother says the father would disappear for up to three weeks at a time whilst on a “drug bender”. She says she never knew where he was or “what state he would be in when he returned”. She further says that the father was primarily focussed on his drug addiction and stopped being involved in their daughters’ lives.
The parties were married in 2011.
The mother states the parties separated on 17 January 2012 as the father’s behaviour “was becoming increasingly erratic and aggressive”. She says she and their daughters remained living at the family home, and she understood the father was living with friends. She says she would allow the father to visit to spend time with the daughters and she would supervise these visits “to make sure they were safe”.
The mother states that between 2012 and 2014, the father would come and go from the home. The mother says she “felt sorry” for the father as he had no other family support or place to stay. She says she “kept hoping he would get clean and go back to being the Mr Keely we knew and loved”.
Y was born in 2016.
Due to heath issues, the mother has not been able to work since 2013 and receives a disability support pension. The mother’s evidence is that since 2011 she has been solely responsible for the payment of the mortgage, living expenses and supporting the children.
The father is currently assessed to pay $9.45 per week in child support. He currently owes $16,472.67 in unpaid child support.
Incidences of family violence
In her trial affidavit, the mother gives evidence about the family violence she alleges occurred during the relationship from 2012 onwards. I do not propose to recite that evidence.
Family Violence Intervention Orders (FVIO), listing the mother and children as protected persons, have been made against the father on six occasions. On 7 December 2021, a final FVIO with full conditions was made against the father, listing the mother, children and the mother’s adult child as protected persons. That FVIO remains in force until 7 December 2023.
The father has been convicted on multiple occasions for persistent contravention of the FVIOs.
Father’s criminal history
The mother’s evidence is that the father has an extensive criminal history. In his affidavit filed on 18 October 2012 the father accepts this.
In summary, the evidence before the Court is that the father has been convicted of multiple offences and persistent breaches of FVIOs. In 2018, the father was sentenced to periods of imprisonment on 3 occasions. In 2019 the father was convicted of crimes and sentenced to two years imprisonment.
In the father’s affidavit, he attributes his criminal behaviour to his misuse of illicit substances.
Family Report
Pursuant to orders made on 20 May 2022 a Family Report was prepared and provided on 20 February 2023.
The father did not attend the Family Report interviews.
PART A - PARENTING
Material relied upon
The mother relies on the following material:
(1)Amended Initiating Application filed 24 March 2023;
(2)Affidavit of Ms Paxton filed 24 March 2023;
(3)Notice of Child Abuse, Family Violence or Risk filed 18 May 2021;
(4)Section 67Z Response from the Department of Families, Fairness and Housing (Child Protection) dated 15 July 2021; and
(5)Family Report dated 22 February 2023.
As the father did not attend the hearing and the matter proceeded on an undefended basis, there was no evidence before the Court in support of the father’s case.
Orders sought
The mother seeks the following orders:
(a)the mother have sole parental responsibility;
(b)the children live with the mother;
(c)the father be restrained and injuncted from communicating in any way with the children without the express written consent of the mother;
(d)the name of X Paxton-Keely be changed to X Keely;
(e)the mother be authorised to register X’s change of name;
(f)mother be permitted to apply for Australian passports for the children without the necessity of obtaining the consent of the father; and
(g)the mother be permitted to travel internationally with the children without notification to, or the consent of, the father.
In addition, at the trial the mother sought orders that the father be restrained from approaching the mother and children, their home, schools or workplaces.
In his response filed on 18 October 2021, the father sought final orders, in summary, as follows:
(a)the mother have sole parental responsibility;
(b)the children live with the mother;
(c)the father communicate with X in accordance with her wishes; and
(d)the father spend time with Y on each alternate weekends, in school holidays and on special days.
CONSIDERATION
Legal principles
Part VII of the Family Law Act 1975 (Cth) (Act) deals with children. Section 60B of the Act sets out the objects and underlying principles of that Part.
In determining parenting matters, s 60CA of the Act provides that I must regard the best interests of the children as being the paramount consideration.
In determining the best interests of the children, there are two primary considerations and several additional considerations to take into account.
Before I turn to the factors in s 60CC of the Act in determining what is in the children’s best interests, I will address the question of parental responsibility.
Parental responsibility
In making a parenting order, the Court must apply a presumption that it is in the children’s best interests for the parents to have equal shared parental responsibility.[1] However, s 61DA(2) goes on to relevantly provide:
The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with the parent of the child) has engaged in:
(a)abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family) or;
(b) family violence.
[1] Family Law Act (Cth) s 61DA(1).
In this case the mother seeks an order for sole parental responsibility. I take it from the father’s response filed in this matter that he does not contest that. The mother’s evidence is that there is a significant history of family violence. The father in his affidavit filed on 18 October 2021 denies that he has engaged in physical family violence and says that the relationship was characterised by mutual verbal family violence. However, he conceded in his affidavit that since 2012 the mother has obtained FVIOs against him, the most recent being on 5 February 2021.
As set out above, in her trial affidavit the mother gives evidence about the family violence she alleges occurred during the relationship.
Having regard to the totality of the evidence in this case, I am satisfied that the presumption of equal shared parental responsibility is rebutted and that it is in the children’s best interests for the mother to have sole parental responsibility for the children.
As no order will be made for the parents to have equal shared parental responsibility for the children I need not consider specifically the matters set out in s 65DAA of the Act.
Primary considerations
The benefit to the children of having a meaningful relationship with both of their parents
The father seeks to have an involvement in Y’s life and that Y has an opportunity to have a meaningful relationship with him. In his affidavit the father accepts that his relationship with his older children has suffered as a result of his behaviour and that X does not wish to have a relationship with him. He also accepts that since early 2018 his relationship with his children has been disrupted by incarceration. The mother’s evidence is that, except for a brief period on or about 2021, following his release from prison the father has not spent any time with the children since 2018 and has not played an active parenting role in the children’s lives since 2011/2012. Despite his asserted desire to have a meaningful relationship with Y, the father has not filed any material since October 2021, did not file any trial material, did not attend the Family Report interviews and did not attend the trial.
The need to protect the children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence
In the face of concerns about the father’s alleged family violence, drug use and mental health, orders were made for the father to, amongst other things:
(a)attend upon a psychiatrist or psychologist;
(b)undertake a men’s behaviour change program;
(c)undertake random supervised drug screen testing at the request of the mother’s solicitor;
(d)provide evidence of participation in a drug treatment program.
Between 25 October 2021 and 20 March 2023 the mother’s solicitor sent 19 drug test requests to the father. Of those, the father completed two. The first, on 29 October 2021, was positive for amphetamine type substances, cannabinoids and benzodiazepines. The second, on 21 May 2022, was positive for benzodiazepines.
There is no evidence before the Court that the father has otherwise complied with the above orders.
In those circumstances, coupled with:
(a)the mother’s evidence regarding family violence, including in the presence of the children;
(b)the history of FVIOs taken out against the father for the protection of the mother and the children, including the currently applicable FVIO which expires on 7 December 2023; and
(c)the father’s failure to put on any contrary evidence before the Court,
the Court is left in a position where it must act cautiously and protectively.
The Family Report writer opines that in the context of the father using illicit substances the children are at significant risk of being exposed to family violence and psychological and emotional harm if they were to spend time with the father. The Family Report writer also opines that the father’s mental health issues, the catalyst for which appears to be the father’s substance abuse, is a significant risk factor in assessing potential harm to the children.
In light of the above matters, I consider the primary considerations strongly favour the mother’s proposals as to parenting.
Additional considerations
The views of the children
The Family Report writer reports that X stated that “I don’t have any [positive] feelings for him now…he made choices that have hurt us so that I don’t want to see him so that he can hurt us again…he makes poor decisions while we pay for those actions.” The Family Report writer further reports that X has witnessed various behaviours by the father in the past that caused her to feel fearful and distressed saying, “he used to hurt my mum, break stuff, steal things from us including things that meant a lot to me…”.
Regarding the prospect of having future contact with the father, the Family Report writer records that X said “It would be horrible…I would feel very anxious and angry to be put in that position …I wouldn’t want to see him.”
X is 16 years old. In the view of the Family Report writer, X is intelligent and very mature for her age and articulated her views with assertiveness and surety. I give considerable weight to her views as expressed to the Family Report writer.
Y is 6 years old. He does not have the maturity or level of understanding at this age for any significant weight to be given to his views.
The nature of the children’s relationship with their parents
The children live with the mother.
The Family Report writer records that X spoke positively and lovingly regarding the mother, her siblings and her extended maternal family, describing her mother as “a really good parent, responsible…cares about us and does the best she can” and their relationship as “very close”.
Whilst the mother’s evidence is that following the birth of his daughters the father was an involved, “hands-on” parent, her further evidence is that the father has not played an active parenting role in the children’s lives since 2011/2012. The mother’s evidence is that except for a brief period on or about 2021, following his release from prison, the father has not spent any time with the children since 2018.
The mother’s further evidence is that X (and her elder sister) do not acknowledge the father as their parent and want no further contact with him.
This appears consistent with the matters reported by X to the Family Report writer.
The mother’s evidence is that Y has never had the father in his life as a father figure.
Remaining 60CC(3) considerations
As to the remaining additional considerations contained in s 60CC(3) in so as they are presently relevant:
(d)the orders sought by the mother would see a continuation of the current arrangements;
(e)the orders sought by the father would result in a substantial change to Y’s circumstances;
(f)the mother has demonstrated a capacity to provide the children with a stable environment. The father has not complied with orders in these proceedings which might have resulted in a progression of time with Y;
(g)family violence issues have been discussed above;
(h)the orders sought by the mother are least likely to result in the institution of further proceedings in relation to these children.
Change of surname
The mother seeks that X’s surname be changed from Keely-Paxton to Paxton.
The mother’s evidence is that X is the only child of the relationship to retain the surname Keely-Paxton. The eldest child of the relationship, Ms E, changed her surname to Paxton after she turned 18 years of age and Y’s birth was registered with the surname Paxton. The mother’s further evidence is that X wants the change to her surname as sought by the mother. The mother’s evidence is that X uses the surname Paxton whenever she can, including on social media and is mainly known as Paxton amongst her friends and peers.
As with any parenting order, X’s best interests are the paramount consideration.
The Full Court in Lysons & Lysons,[2] at [24], referring to a decision in Reagan & Orton[3] sets out the following frequently considered in determining whether there should be any change of name:
(a)Any embarrassment likely to be experienced by the child if his or her name is different from the parent with residence or care and control;
(b)any confusion of identity which may arise for the child if his or her name is changed or is not changed;
(c)the effect any change in surname may have on the relationship between the child and the parent whose name the child bore during the relationship;
(d)the effect of frequent or random changes of name;
(e)the contact that the non-custodial parent has had and is likely to have the I the future with the child;
(f)the degree of identification that the child or children have with their non-custodial parent; and
(g)the degree of identification which the child or children have with the parent with whom they live.
[2] Lysons & Lysons [2019] FamCAFC 29.
[3] Reagan & Orton [2016] FamCA 330, at [34].
Connor J of the Family Court Western Australia in Beach & Semmler[4] referred to additional matters relevant to a change of a child’s name:
(h)the advantages both in the short term and in the long term which will accrue to the children if their name remains as it is now;
(i)the contact that the husband has had and is likely to have in the future with the children;
(j)the degree of identification that the children now have with their father; and
(k)the degree of identification which the children have now with their mother.
[4] Beach & Semmler (1979) FCWA 1, page 2
The surname Paxton is the surname of the mother and it appears that the parents have maintained different surnames. X has always had a different surname to her mother, whereas Y has always shared the same surname.
X is not currently spending any time with the father and given her views as expressed to the Family Report writer this seems unlikely to change. It therefore seems unlikely that her relationship with the father would be affected by a change of name.
Given X’s views regarding the father, I accept the mother’s evidence that X wants to change her surname to Paxton and use the surname Paxton wherever she can. I give weight to X’s wishes. However, the most relevant consideration in my view, and one to which I give significant weight, is that a change of name would see all of the children who live with the mother sharing a common surname.
In light of the above matters, I considered it in X’s best interests to order the change of surname as sought by the mother.
No contact orders
The mother’s evidence is that X refuses to answer calls from the father and does not accept his friend requests on Facebook. The mother’s evidence is that Y has only ever had minimal contact with the father and has not seen the father since around 2021 following his release from prison.
X’s views as to contact with her father are set out above. Given her age and maturity, I give considerable weight to those views.
The Family Report writer opines that attempting to re-establish time spent between X and the father would be considered potentially emotionally harmful and not in her best interests. As to contact with Y, the Family Report writer states that until the father is abstinent from substance use it is considered in Y’s best interests that no contact between him and the father take place.
In the context of the father using illicit substances and the significant risk to the children of being exposed to family violence and psychological and emotional harm, and the father’s failure to put any contrary evidence before the Court, I consider the orders sought by the mother as to contact with the father are in the children’s best interests and will protect them from possible further harm. In making this order I acknowledge that the capacity for the children to maintain a meaningful relationship with the father will be largely compromised, but s 60CC(2)(a) requires that their safety is prioritised.
Passport orders and overseas travel
The mother seeks orders that would permit her to obtain Australian passports for X and Y without the father’s consent and to travel internationally with the children.
The mother’s evidence is that her family is from England and she would like to be able to take the children to England and to travel internationally with the children.
With respect to obtaining passports for a child, s 11(1) of the Australian Passports Act 2005 (Cth) relevantly provides:
(1) The Minister must not issue an Australian travel document to a child unless:
(a)each person who has parental responsibility for the child consents to the child having an Australian travel document; or
(b)an order of a court of the Commonwealth, a State or a Territory permits:
(i)the child to have an Australian travel document; or
(ii)the child to travel internationally…
Both these issues require this Court to have regard to the best interests of the children.
I am satisfied that the mother has always been the primary carer of the children and it is proper that an order be made permitting her to obtain passports and travel overseas with the children without the father’s consent.
I have had regard to the authorities in cases such as Kuebler & Kuebler[5] and Line and Line[6]. By reference to those authorities and the mother’s evidence I am satisfied that:
·the travel which will be undertaken by the mother at any time in the future would be for appropriate periods and to appropriate destinations;
·the mother is a citizen of and ordinarily resident in Australia and is likely to return to Australia where her social and economic connections are found; and
·the travel for the children and the mother would be beneficial to the children.
[5] Kuebler & Kuebler (1978) FLC 90-434
[6] Line and Line (1996) 21 FamLR 259
I am also satisfied that orders sought by the mother to facilitate such international travel are appropriate.
CONCLUSION
For each of these reasons, I find that it is in the children’s best interests to make the orders as sought by the mother.
I therefore make parenting orders in the terms set out at the commencement of these reasons.
PART B - PROPERTY
Material relied on
The wife relies on the following material:
(1)Amended Initiating Application filed 24 March 2023;
(2)Affidavit of Ms Paxton filed 24 March 2023;
(3)Financial Statement of Ms Paxton dated 18 May 2021;
(4)Financial Statement of Mr Keely dated 18 October 2021;
(5)Exhibit 1 – evidence regarding ownership of vehicles from Transport NSW;
(6)Exhibit 2 – mortgage statements for B Street, Suburb C;
(7)Exhibit 3 – mortgage statements showing withdrawals;
(8)Exhibit 4 – Domain search of B Street, Suburb C;
(9)Exhibit 5 – child support assessment dated 21 November 2022; and
(10)Exhibit 6 – child support debt as at 23 March 2023.
As noted earlier at paragraph 27, the husband did not attend the hearing and the matter proceeded on an undefended basis. Accordingly, there is no evidence before the Court in support of the husband’s case.
Orders sought
The wife seeks the following orders:
(a)the husband transfer all interest in the Property to the wife;
(b)the wife cause the mortgage on the Property to be discharged;
(c)if the wife is unable to discharge the mortgage, the Property be sold and the sale proceeds be paid:
(i)firstly, to discharge the mortgage;
(ii)secondly, to pay any agents costs and commissions and the costs of the sale; and
(iii)thirdly, the balance to the wife.
In his response filed on 18 October 2021 the husband, in summary, sought the following orders:
(a)the wife retain and have sole use of the Property;
(b)the wife cause the mortgage on the Property to be discharged; and
(c)the wife pay the husband the sum of $26,836 on account of the husband’s interest in the Property.
Legislative principles
Part VIII of the Act deals with property.
Section 79 of the Act provides that the Court may alter the property interests of the parties to a marriage. Subsection 79(2) of the Act relevantly provides that:
The court shall not make an order under this section unless it is satisfied that, in all the circumstances, it is just and equitable to make the order.
Section 79(4) of the Act sets out the matters the Court must take into account when considering what orders, if any, should be made for the alteration of the interests of the parties in property. I do not propose to set those out in full, but have had regard to them in considering this matter.
It is well settled since Stanford v Stanford (2012) 247 CLR 108 that the proper approach to an application under s 79 of the Act requires the Court to first conclude that it is just and equitable to make an order adjusting the property rights between the parties.
In this case, the parties separated in 2012. Both parties sought orders finalising financial matters between them. Having regard to the facts in this matter, it is just and equitable to make orders adjusting their property interests of these parties and bringing their financial connection to an end.
Having come to this view, the substantive question for these proceedings is what order is appropriate having regard to the factors set out in the Act. I turn to the approach that the Court takes in considering what orders are appropriate under s 79 of the Act. As noted by the High Court in Norbis v Norbis (1986) 161 CLR 513, the Court has a discretion in making orders under s 79 and in exercising that discretion, regard must be had to the factors in s 79(4).[7]
[7] Norbis v Norbis (1986) 161 CLR 513 at [4]; see also Mallet v Mallet (1984) 156 CLR 605 at [609].
The approach that the Court generally takes in considering what orders are appropriate under s 79 of the Act are aptly summarised in In the Marriage of Hickey [2003] FamCA 395. Essentially this requires the Court to:
(a)identify the assets and the value of the assets in the property pool;
(b)determine the contributions made by each of the parties to those assets, both directly and indirectly and in financial and non-financial terms;
(c)determine whether any adjustment is required for s 75(2) factors; and
(d)in light of those findings, determine what orders for the division of property is just and equitable.[8]
[8]Bevan v Bevan [2013] FamCAFC 116.perce
Asset pool
The only evidence before the Court as to the parties’ assets and their values is that of the mother. I am satisfied that the husband was put on notice of the mother’s proposal and afforded sufficient opportunity to put forward any trial evidence relevant to this issue. He has not done so and I therefore accept the unchallenged evidence of the wife in relation to the parties’ assets and liabilities as follows:[9]
[9] Mother’s outline of case filed on 6 April 2023 (not including Company D personal loan or fines accumulated by the husband in the wife's name; see Part D financial proceedings contentions point 3 and 4)
Asset
Ownership
Value
B Street, Suburb C
Joint
$500,000
Personal accounts
Mother
Nominal
Personal accounts
Father
Unknown
Motor Vehicle 1
Mother
$2,000
Worker’s compensation payment
Father
$21,200
Motor Vehicle 2
Father
$4,000
Motorbike
Father
$11,000
Total assets $538,200
Liabilities
Liability
Ownership
Value
Westpac bank mortgage
Joint
$217,348
Total liabilities $217,348
Superannuation
Name of fund
Member
Value
Super Fund 1
Mother
$29,441
Super Fund 2
Father
$15,724
Total superannuation pool $45,165
The net asset pool is then as follows:
Non-superannuation net pool
$320,852
Net pool with superannuation
$366,017
I also note the orders dated 25 October 2021 note that the parties agreed to value the Property at $500,000.
Contributions
At the commencement of cohabitation neither party had any assets of significance.
The wife’s evidence is that the purchase of the Property was funded through the first home owners grant and a mortgage to Westpac. Her evidence is that the parties were only able to obtain a mortgage from Westpac as a result of the wife’s mother agreeing to be guarantor and providing her own property as additional security.
The husband has not worked since his workplace injury in 2011 and used illicit substances. The wife concedes that the father paid the children’s school fees between 2012 and 2014.
The husband was incarcerated in 2018 until 2021 and was incarcerated at other points in time during the relationship for shorter periods. The wife’s evidence is that any periods between 2011 and 2018 where the husband did provide some contribution were minimal. I accept that evidence.
In 2017, the husband stole the wife’s car and wrote it off. The wife obtained a loan from her mother to purchase a replacement car and has gradually paid off this loan.
In 2018 the husband, without the wife’s consent, withdrew funds from the mortgage totalling $4040.
The husband stole money from the children and the wife and household items prior to his 2018 incarceration.
The husband is currently assessed as being required to pay $9.45 per week in child support.
The husband currently owes $16,472.67 in unpaid child support.
The wife worked full-time until 2013. Since that time the wife has been unable to work due to health issues and is reliant upon the disability support pension.
Since 2011 the wife has been solely responsible for the payment of the mortgage, living expenses and supporting the children.
In addition to financial contributions, the wife’s evidence is that she was the primary homemaker and primary carer during the relationship and in the subsequent 12 years post separation.
The husband, as stated, did not file any trial material addressing these issues. However, it does not appear disputed that neither party had any assets of significance at the commencement of the relationship, nor that the Property was purchased as attested to by the wife. It also does not appear disputed that the father has used illicit substances for many years and has been incarcerated on multiple occasions. Further, in the husband’s financial statement dated 18 October 2021, the husband states that at that time the wife’s contribution was 100%.
The wife’s evidence is that her contribution to the relationship was 90% and the husband’s 10%. Based on the evidence before the Court, I find that the parties contributed to the relationship in those percentages.
Section 75(2) factors
As to the s 75(2) factors presently relevant, based on the evidence before the Court, noting that the husband did not file any trial evidence as to any relevant matters, I make the following findings and observations:
(a)the wife is 42 years old;
(b)the wife suffers from a number of health issues including medical conditions which means she is unable to work and is reliant upon the disability support pension;
(c)the wife takes Medications to try to help manage her symptoms;
(d)the wife has the sole care and responsibility of X and Y, who is only 6 years old;
(e)the wife continues to support the parties’ adult child, Ms E;
(f)as set out above, the husband is assessed to pay $9.45 per week in child support and currently owes $16,472.67 in outstanding child support;
(g)given the wife’s restricted earning capacity, it is unlikely that the wife will be able to refinance the Property for more than the current mortgage debt. If the wife is required to sell the Property, her evidence is that she would be unlikely to buy another property and this would force her and the children into unstable rental housing.
Having regard to the evidence before the Court I find that the wife has a greater future need than the husband and consider an adjustment of 10% in the wife’s favour to be just and equitable.
CONCLUSION
Having regard to each of these factors, I find that it is just and equitable for orders to be made which would see the wife retain the Property and make no payment to the husband. Each party retain their own superannuation and vehicles. This would see an overall distribution of the asset pool where the wife retains 85.81% and the husband retains 14.19%. This is inclusive of the 10% adjustment with respect to the wife’s future needs.
In all of the circumstances of this matter, I find that the orders set out at the commencement of these reasons are just and equitable having regard to the relevant considerations set out in the Family Law Act1975 (Cth) and I so order.
I certify that the preceding one hundred and twelve (112) numbered paragraphs are a true copy of the Reasons for Judgment of Judge J Young. Associate:
Dated: 3 May 2023
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